How to apply to vary a modern award in the Fair Work Commission
You can apply to the Fair Work Commission (FWC) to vary a modern award under section 157 of the Fair Work Act 2009 (Cth). The FWC can vary an award if satisfied the variation is necessary to achieve the modern awards objective in section 134. Applications are made on Form F46 and typically involve evidence, written submissions, and a hearing before a Full Bench.
The framework
The power to vary a modern award flows from section 157 of the Fair Work Act 2009 (Cth). The modern awards objective is in section 134. Four-yearly review provisions have been superseded, but ad hoc applications remain available. Part 2-3 governs modern awards generally.
The process
Identify the award and the clause
Locate the specific modern award and clause. There are around 121 modern awards. The variation must be expressed precisely — add, change, or delete a specific clause number and text.
Frame the variation against section 134
The FWC must be satisfied the variation is necessary to achieve the modern awards objective — fair minimum safety net, productivity, work-life balance, additional remuneration for overtime, business viability, and regulatory burden.
Consider standing
Applicants include employer associations, unions, employers, employees, and the Fair Work Ombudsman. Individual employees can apply but usually join a union or association to share the evidentiary load.
Prepare a draft determination
Draft the proposed award text as a redlined determination showing current clause and proposed change. Precision matters — unclear drafting attracts objections.
Lodge Form F46
File Form F46 — Application to vary a modern award — via the FWC online portal. Attach the draft determination, a statement of reasons, and any supporting evidence.
Serve interested parties
Serve employer associations, unions, and other relevant parties under section 168. The FWC may give directions on notification including gazette notices.
Directions and evidence
The FWC lists a mention before a Full Bench or Presidential Member. Directions are made for witness statements, expert economic evidence, and written submissions.
Written submissions and evidence bundle
Submissions should address each limb of section 134, evidence of industry conditions, and responses to opposing submissions. Economic evidence from organisations like the RBA or ABS data often features.
Full Bench hearing
Most award variations are heard by a Full Bench of three or more members. Hearings involve cross-examination of lay and expert witnesses. Oral submissions typically span one to three days.
Decision and determination
The Full Bench issues a written decision. If granted, a formal variation determination amends the award. Appeals are limited — to the Federal Court on jurisdictional error under section 562.
Forms and templates
Common mistakes
- Drafting variations without showing how each achieves the section 134 objective
- Lodging without consulting employer associations or unions
- Submitting vague or broadly worded award text
- Underestimating the volume of economic evidence required
- Confusing an award variation with an enterprise agreement variation
Get this process right with Quillio
Quillio can help locate the current award clause, draft the proposed variation against section 134, and structure written submissions with economic evidence. See /practice-areas/employment-law or start a free trial.
This guide is general information, not legal advice. Award variations are technical — engage an industrial relations lawyer or an employer/union advocate with FWC experience.
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